Who has the right to Ontario’s Algonquin lands?

ANALYSIS: David Tabachnick writes that after several decades of talks, it’s still unclear who should speak for the Algonquin people in a massive land claim process
By David Tabachnick - Published on November 21, 2017
a press conference
Prime Minister Justin Trudeau speaks at a forum on self-government on Nov. 1, 2017, with Elder Irvin Sarazin of the Pikwakanagan First Nations and other officials. (Justin Tang / Canadian Press)

NORTH BAY — There are many unsettled issues related to Indigenous rights and self-government in Canada, but there’s broad consensus on one point: Aboriginal rights are collective in nature. They are held by communities, and facilitated by a deep and abiding bond between the people and the land. In turn, the settlement of land claims is of critical importance to Indigenous people so that they can actually practise their rights.

Here’s the inherent challenge of collective rights, however: Groups often contain smaller groups within them, and the interests of those subgroups do not always align with those of the whole.

That’s the conundrum facing the Algonquins of Ontario (AOO), which represents approximately 10,000 members. Since the early 1990s it has been negotiating the transfer of approximately 117,500 acres of Ontario Crown land — running from around Hawkesbury to North Bay — to Algonquin ownership. This is the largest piece of land under treaty negotiation in Ontario.

Last year, the membership voted overwhelmingly to accept an agreement in principle to settle the claim. Around the same time, members of the Pikwakanagan First Nation, one of the 10 communities represented by the AOO, held a separate vote and cast their ballots decisively against the deal (74% rejected the deal, 26% voted to accept).

Soon after, a stalwart group of grandmothers from Pikwakanagan, launched a $350 million lawsuit to force their band council to withdraw from any further treaty negotiations, arguing that the agreement would negatively transform their reserve — the only one in the entire land claim area — into a “mere municipality” not covered under the Indian Act, a change whose consequences would include the introduction of individual property ownership to the reserve.

The eight grandmothers, known as the Kokomisag Tiji Pikwakanagan, also cast doubts on the eligibility of many members of the AOO, implying that they are not really Algonquin. (Reports have said some Algonquin cardholders can demonstrate only a single Indigenous ancestor in the last three centuries.)

In essence, the controversy pits the Algonquins who live on the reserve (and who have overwhelmingly voted to reject the deal) against a larger number of members who want to go ahead with the land transfer — but whose claims to authentic Algonquin identity have been questioned. And there may ultimately be cash payouts at stake.

a map of Algonquin land claims

The controversies around Aboriginal rights ultimately stem from how they appear in the Constitution of Canada. Instead of a clear list of individual rights, such as we find in the Charter of Rights and Freedoms, there is no corresponding breakdown of Aboriginal rights — which leaves it up to the courts to determine exactly what the provisions of Section 35 actually mean in practice. Since the patriation of the Constitution in 1982, courts have decided that these rights cover a broad array of spiritual and economic activities. The R v. Sparrow decision of 1990, for example, determined that there is an Aboriginal right to hunt and fish. In 1996 R v. Van der Peet established that the assertion of an Aboriginal right must relate to traditional customs. But, R v. Powley, in 2003, seemed to further extend these rights to more modern activities.

Being collective in nature, Aboriginal rights are far more complicated to define than individual rights. For one thing, it can be difficult to decide who belongs to the group that claims the rights in question. So while there has been some controversy over its size and scope of the Algonquin land claim (for instance, some residents of North Bay have expressed concern about access to parkland and camping grounds), the largest problem has been defining the group to which it applies. As suggested by the grandmothers of Pikwakanagan, the big question is who is an Algonquin — and who gets to decide.

Three Quebec First Nations say the Ontario Algonquin agreement includes a parcel of land which they claim as part of their territory. Lance Haymond, Chief of the Kebaowek First Nation in Quebec, told the CBC “the Algonquins of Ontario do not have the moral or legal obligation to negotiate away all the rights of the Algonquin people.”

Russell Diabo, a policy adviser to the Algonquin Nation Secretariat, an organization representing the Algonquins of Quebec, has stated bluntly that a large portion of the AOO is made up of “instant Algonquins” — non-indigenous people claiming a loose connection to an Algonquin heritage. In an article for TVO.org, Diabo concluded that the confusion over Indigenous identities “could slow, alter or halt the negotiation process.”

Chief Haymond of Kebaowek First Nation echoed the idea that many of the people who voted in the main referendum did not meet reasonable eligibility requirements. “The vast majority” of the Algonquins of Ontario, Haymond explains “are not Algonquin at all.”

Other First Nations people face the tough question of who is an Indigenous person and who isn’t. The Kahnawà:ke Mohawk Territory has drawn criticism for its residency laws, which forbid Mohawks cohabiting with non-Indigenous people on the reserve. Several couples have filed complaints to the Canadian Human Rights Commission after being evicted from the community under the 1981 law. On the other hand, a group calling itself the Mikinaks has been rightly criticized for being absurdly open to new membership. Anyone who can show evidence of a single Aboriginal ancestor is issued one of its “status cards,” which are not officially recognized.

In the case of the Algonquin land claim, more is at stake than ancestral ties. The agreement in principle includes $300 million to be distributed among AOO members along with access to potential profits from natural resource and commercial development.

Kirby White Duck, Chief of the Algonquins of Pikwakanagan First Nation, isn’t withdrawing from the negotiations – as the eight grandmothers of his nation are demanding — but he admits there is division in the community, and he expects this to slow down the land claims process even longer.

It should not be surprising that a deal involving so many people and so much land would stoke controversy, whether the people are Aboriginal or otherwise. However, because Aboriginal rights are collective in nature — and because Indigenous identity can be a slippery question – complications can prevent First Nations people from actually practising their legal rights. All Canadians should consider this challenge important, as the settling of these claims is also a big step toward reconciliation.

David Tabachnick is a professor of political science at Nipissing University in North Bay.

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